State v. Frommelt, No. 52834

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLeGRAND; All Justices concur except BECKER
Citation159 N.W.2d 532
Decision Date11 June 1968
Docket NumberNo. 52834
PartiesSTATE of Iowa, Appellee, v. Thomas P. FROMMELT, Appellant.

Page 532

159 N.W.2d 532
STATE of Iowa, Appellee,
v.
Thomas P. FROMMELT, Appellant.
No. 52834.
Supreme Court of Iowa.
June 11, 1968.

Page 533

Joseph J. Bitter, Dubuque, for appellant.

Page 534

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and Michael M. McCauley, County Atty., Dubuque, for appellee.

LeGRAND, Justice.

This is an appeal from judgment following a jury verdict convicting defendant of assault with intent to inflict great bodily injury in violation of section 694.6, 1966, Code of Iowa. The charge arose out of an altercation between two young men working on the Flood Control project in Dubuque County, Iowa, during the Spring of 1967.

Prior to the incident the defendant and his victim did not know each other. While the flood control work was in progress, a car parked near the work site had been tampered with and air had been released from several of its tires. Although defendant did not own this car, he involved himself in a dispute over it. Defendant accused Stephen Althaus of having a part in this bit of mischief, which accusation was entirely unfounded. After an exchange of words, defendant assaulted Althaus with his fists and feet. He inflicted injuries which required surgery to Althaus' left eye and which caused a fracture and displacement of the orbital bones. There were also other less serious injuries, including a lacerated lip and bruises. At the time of trial Althaus' vision was still impaired. There is evidence from which the jury could find defendant not only struck Althaus with this fist but also kicked him or stepped heavily upon him as he lay on the ground.

Defendant raises three main issues on this appeal:

(1) Failure of the trial court to give defendant's proposed Instruction 3 defining great bodily injury, and subsequent error in the trial court's own Instruction 7 concerning this matter; (2) Failure of the trial court to give an instruction on provocation, and (3) Error of the trial court in ruling on various matters dealing with impeachment testimony.

I. We find no merit in defendant's complaint concerning the trial court's Instruction 7 on great bodily injury. The instruction given was as follows:

'Whoever wilfully and unlawfully assaults another person with intent to inflict upon such person some bodily injury of a more grave and serious character than would ordinarily result from an assault and battery is guilty of assault with intent to inflict a great bodily injury. In other words, by great bodily injury is meant an injury to the person greater than that which ordinarily results from a simple altercation between two persons.'

The only objection raised by defendant is the failure to include in the instruction the words 'with the fists or the like.' Otherwise the instruction was given exactly as requested by defendant.

The language requested by defendant was taken from an approved instruction in State v. Moon, 241 Iowa 1232, 1235, 44 N.W.2d 739, 740. However, it does not follow this is the only definition permissible in explaining great bodily injury to the jury. We have held several times the charge of assault with intent to inflict great bodily injury is impossible of precise definition.

In State v. Crandall, 227 Iowa 311, 315, 288 N.W. 85, 88, we said, 'The defendant was charged with the crime of assault with intent to inflict great bodily injury. This is a crime which is not susceptible of exact definition. It is also difficult to define with exactness or definite limitations just what a great bodily injury is. We have said at different times that it is an injury to the person of a more grave and serious character than an ordinary battery, but that it cannot be definitely defined. * * *' We approved this statement in State v. Moon, supra, upon which defendant relies in claiming error here.

Page 535

We believe Instruction 7 as given complies substantially with what we said in both Crandall and Moon. The trial court was careful, not only in Instruction 7 but also in Instruction 11, to avoid conflict with those decisions.

We believe Instruction 7 as given was proper.

II. Defendant next asserts he was entitled to an instruction on provocation in order to excuse his acts, or at least to relieve them from the onus of having been committed with intent to inflict great bodily injury. Defendant claims he was provoked by certain remarks made by young Althaus; by the release of air from the car tires; and by Althaus' act in reaching out and grabbing him.

None of these claims is sustained by the record. The evidence is undisputed, first, that Althaus had no part in releasing the air from the tires and it shows also that whatever act Althaus did in connection with placing his hands upon defendant was done after the assault was already in progress and could under no circumstances have provoked it. As to the use of provocative words, we merely say the record discloses no abusive, insulting or threatening language.

We need not rely on the record, however, as a basis for refusing defendant's requested instruction. We can dispose of his argument, as did the trial court, by pointing out we have never recognized provocation as a justification for assault. 6 Am.Jur.2d, Assault and Battery, section 61, page 56; 6 C.J.S. Assault and Battery § 91, page 942; State v. Miller, 231 Iowa 863, 2 N.W.2d 290; State v. Davis, 209 Iowa 524, 228 N.W. 37. In 6 C.J.S. Assault and Battery § 91, at page 942 appears this statement of the rule, 'In view of the fact that peace and good order forbids that individuals shall right their own wrongs,...

To continue reading

Request your trial
15 practice notes
  • State v. Mincey, No. 3283-2
    • United States
    • Supreme Court of Arizona
    • October 13, 1981
    ...Gollaher v. United States, 419 F.2d 520 (9th Cir.) cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424 (1969); State v. Frommelt, 159 N.W.2d 532 (Iowa 1968), we agree with appellant that the witness must have been competent to give that testimony for it to be admissible at a subsequent......
  • State v. Hall, No. 57467
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1975
    ...We have construed minutes to consist of summarized statements of what the witnesses said before the grand jury. See State v. Frommelt, 159 N.W.2d 532, 536 (Iowa 1968); State v. Johnson, 259 Iowa 599, 603, 145 N.W.2d 8, 10 (1966); Annot. 20 A.L.R.3d 7 (1968); Black's Law Dictionary, Rev.4th ......
  • State v. Cuevas, No. 61947
    • United States
    • United States State Supreme Court of Iowa
    • July 25, 1979
    ...before cross-examining that witness. § 771.24, The Code; Gartin, 271 N.W.2d at 911; Hall, 235 N.W.2d at 715; See also State v. Frommelt, 159 N.W.2d 532, 536 (Iowa 1968). Here defendant was not denied that right. We find no error in trial court's pretrial X. Should a mistrial have been decla......
  • State v. Kimball, No. 53564
    • United States
    • United States State Supreme Court of Iowa
    • May 5, 1970
    ...it has considerable discretion in determining the scope and extent Page 868 of cross-examination, State v. Frommelt (1968), Iowa, 159 N.W.2d 532, 537, the trial court erred in refusing to allow the witness to answer this question. It is proper for a party to inquire as to the interest the w......
  • Request a trial to view additional results
15 cases
  • State v. Mincey, No. 3283-2
    • United States
    • Supreme Court of Arizona
    • October 13, 1981
    ...Gollaher v. United States, 419 F.2d 520 (9th Cir.) cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424 (1969); State v. Frommelt, 159 N.W.2d 532 (Iowa 1968), we agree with appellant that the witness must have been competent to give that testimony for it to be admissible at a subsequent......
  • State v. Hall, No. 57467
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1975
    ...We have construed minutes to consist of summarized statements of what the witnesses said before the grand jury. See State v. Frommelt, 159 N.W.2d 532, 536 (Iowa 1968); State v. Johnson, 259 Iowa 599, 603, 145 N.W.2d 8, 10 (1966); Annot. 20 A.L.R.3d 7 (1968); Black's Law Dictionary, Rev.4th ......
  • State v. Cuevas, No. 61947
    • United States
    • United States State Supreme Court of Iowa
    • July 25, 1979
    ...before cross-examining that witness. § 771.24, The Code; Gartin, 271 N.W.2d at 911; Hall, 235 N.W.2d at 715; See also State v. Frommelt, 159 N.W.2d 532, 536 (Iowa 1968). Here defendant was not denied that right. We find no error in trial court's pretrial X. Should a mistrial have been decla......
  • State v. Kimball, No. 53564
    • United States
    • United States State Supreme Court of Iowa
    • May 5, 1970
    ...it has considerable discretion in determining the scope and extent Page 868 of cross-examination, State v. Frommelt (1968), Iowa, 159 N.W.2d 532, 537, the trial court erred in refusing to allow the witness to answer this question. It is proper for a party to inquire as to the interest the w......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT